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[2014] ZAGPPHC 205
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F v Minister of Safety And Security and Another (4194/2006) [2014] ZAGPPHC 205 (11 April 2014)
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Note: Certain personal/private details of parties or witnesses
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IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No.: 4194/2006
DATE:
11 APRIL 2014
In
the matter between:
F
...................................................................................................................
Plaintiff
And
THE
MINISTER OF SAFETY AND SECURITY
..........................
First
Defendant
ALLISTER
CLAUDE VAN WYK
...............................................
Second
Defendant
JUDGMENT
:11 APRIL 2014
MEER
J.
[1]
This judgment seeks to determine the quantum of damages to which the
plaintiff is entitled as a consequence
of her having been raped by
the second defendant, an off-duty policeman, in October 1999 when she
was 13 years and 10 months old.
The plaintiff is currently aged
29. The first defendant, the Minister of Safety and Security, has
already been found to be vicariously
liable for the conduct of the
second defendant. On 26 June 2009 this Court found in the plaintiff's
favour on the merits.
Its judgment was however over-turned in
an appeal brought by the first defendant to the Supreme Court of
Appeal in June 2009.
A further appeal by the plaintiff to the
Constitutional Court succeeded in December 2011, when an order was
granted declaring that
the first defendant was liable for the
plaintiff’s damages.
[2]
The plaintiff's civil claim for damages commenced in April 2006. That
same year, in October, the second
defendant's criminal trial for her
rape was concluded. He was convicted and sentenced to 12 years
imprisonment of which 5 years
were suspended. He was
subsequently released from prison just over 2 years later in November
2008. It therefore falls
upon this Court, some 15 years after
the rape, eight years post-conviction, and commencement of this
action, to resolve the plaintiff's
claim for damages. The plaintiff
has in the interim received an award from the first defendant in the
sum of R250 000 as a contribution
towards her damages.
[3]
The matter resumed before me on 3 March 2014. In contrast to
the sum of R7 730 700.00 originally
claimed in her summons, at the
conclusion of the hearing the plaintiff reduced her claim to R5
million. This comprised R1 million
in respect of general damages, R3
520 000.00 in respect of loss of earnings and R528 600.00
for future medical expenses,
rounded off to a lump sum of R5 million,
with allowances for contingencies.
[4]
The plaintiff annexed to her amended particulars of claim the medico
legal reports of clinical psychologist
Professor Dave Edwards
[1]
,
dated 2 April 2006 who has since passed away, clinical psychologist
Mr Ian Meyer
[2]
dated 15 March
2013, industrial psychologist Mr Donovan Shaw
[3]
dated 24 March 2006, industrial psychologist Dr H Van Daalen
[4]
dated 27 March 2013 and the report of actuary Mr Simon Kroon
[5]
dated 12 April 2013. At the hearing Messrs Meyer, Kroon and Van
Daalen testified as experts for the plaintiff. The plaintiff
also
testified.
[5]
The first defendant relied on the medico legal reports of clinical
psychologist Mr Larry Loebenstein
[6]
and industrial psychologist Dr H Swart
[7]
both of whom testified as experts. No actuary testified for the
first defendant. After argument the first defendant
submitted
an actuarial report of Munro Forensic Actuaries. The actuarial
computations of the plaintiff's actuary, Mr Kroon
were not contested
by the first defendant.
Background
and common cause facts
[6]
The plaintiff’s personal and family background as well as her
current circumstances appears from
the well documented and
extensively considered reports of the psychologists, as well as from
her testimony. The plaintiff
was born on 15 December
1984, the eldest of the 5 children of her parents’ marriage,
there being 3 younger sisters and a
brother. It is common cause
that her early development was coloured by considerable trauma and
disruption. The plaintiff’s
father was a heavy drinker
and her parents' relationship was turbulent. Her mother recalled to
industrial psychologist Dr Swart
that her husband physically and
mentally abused her and that the plaintiff would attempt to come
between her parents when they
were fighting. The family
was poor and moved around extensively, as her father searched for
work opportunities.
This resulted in the plaintiff attending 5
different schools during her primary education. Her father did
building work and
her mother was a house-wife. When the
plaintiff was 5 years old her mother gave birth to a seriously
disabled daughter.
[7]
The plaintiff’s father died suddenly in 1996 from a gunshot.
The plaintiff was uncertain if this
was due to an accident or whether
he shot himself deliberately. The plaintiff, who according to
her mother was her father’s
favourite child, was deeply
saddened by his death.
[8]
Two weeks after her father’s death, the plaintiff’s
disabled sister Angelique, aged 7, choked
to death while being fed.
The plaintiff was present in her mother’s bedroom and witnessed
the death. This, too,
was a significant loss to the plaintiff
who loved her sister very much.
[9]
The plaintiff’s mother during interviews with the first
defendant’s psychologists Dr Swart
and Mr Loebenstein in
September 2013, said that after the death of her husband she
experienced extensive problems with the plaintiff
who became
uncontrollable and disobedient. This, she said, was
in response to the death of her father and sister.
The
plaintiff’s mother, herself, started drinking after her
husband’s death.
[10]
The family now comprising of the mother and 4 children, the plaintiff
aged 13, Pamela aged 12, Catherine aged 7
and Wayne aged 3, moved
from George to Fort-Beaufort at the beginning of 1997 on invitation
from the plaintiff’s father’s
family who was to help
financially.
[11]
The plaintiff adjusted to school in Fort-Beaufort where she began
Grade 6. The plaintiff reported to Professor
Shaw that she made
friends and did well academically. However, a few months later
her mother moved the family back to George
where the plaintiff
completed Grade 6, reportedly with good marks. According to
Professor Shaw although the plaintiff was
subjected to bullying and
teasing at school the next year, she made friends and continued to do
well. It was towards the
end of that year, 1998, that the
plaintiff was raped.
The
rape and its
sequelae
[12]
On the night of 15 October 1998 the plaintiff, aged 13, was raped in
George by the second defendant , a policeman
who was on stand-by duty
at the time, after he offered her a lift in a police vehicle.
The plaintiff had been at a club with
two older women prior to the
event. She was a virgin at the time. The rape was
preceded by repeated assaults to her
person. The various
medical reports indicated the following injuries:
An
open wound to her lips;
multiple
contusions to her arm;
multiple
swellings to her face and head;
swelling
of her nose;
multiple
contusions to her legs and torso;
tearing
of the vagina, vaginal bleeding, torn hymen and loss of
virginity.
[13]
After the rape the plaintiff received no counselling or any form of
psychological support. She was raped
on a Wednesday and went
back to school the following Monday. She coped by acting as if
the rape had not happened and attempted
to block it out.
[14]
Family life continued to be unsettled. Her mother’s
response to the rape was to move the family back
to Fort-Beaufort
before the end of the school year. This meant that the
plaintiff did not complete the standard, although
the school passed
her on the basis of her satisfactory academic performance during the
year. The next year, 1999, the plaintiff’s
mother became
involved with a new partner, Wayne, whom she married. Their son
Gerhard was born. Wayne was dependant
on alcohol, drank
regularly and freely during the day and was in constant conflict with
the plaintiff and her siblings. The
relationship between Wayne
and the plaintiff’s mother was also volatile and there were
frequent separations. The plaintiff
felt very protective of her
mother who seemed to be unable to stand up to Wayne and at times the
plaintiff attacked him physically.
[15]
It is reported by clinical psychologist Meyer that the relationship
between the plaintiff and her mother changed
after the rape incident,
that her mother had limited capacity to offer support and the
plaintiff’s behaviour deteriorated.
[16]
Her mother approached Child Welfare. It was arranged for the
plaintiff to be placed at the King Williamstown Child
and Youth Care
Centre and she was enrolled at high school there. Her behaviour
did not improve and she could not focus
on her school work,
most probably according to Professor Edwards because she was
clinically depressed. She was involved in
frequent arguments
and physical fights. In November 1999 she and two others ran
away to Port Elizabeth where they lived as
street children until
taken in by a family.
[17]
The plaintiff was subsequently sent to an industrial school in
Bloemfontein which caters for children with behavioural
problems.
Here, her overall adjustment was unsatisfactory and her behaviour
became increasingly decontrolled. On one of her
visits home,
Professor Edwards’s records, she quarrelled with her mother and
swallowed some medication in an attempt to kill
herself. The
plaintiff did not complete the school year and discontinued her
education in September 2000 a few months short
of her sixteenth
birthday.
[18]
In 2001, the year after leaving school, the plaintiff stayed at
home as, according to the report of Professor
Edwards, she did not
feel like doing anything. She later secured a position at the Spar in
Fort-Beaufort for two weeks and thereafter
at the Spar in Queenstown
for three months. Her work record has been erratic. According
to Swart, she would lose interest
in her work, become irritated,
aggressive and leave. During 2003 she worked at a fruit and
vegetable store for between two
weeks to a month, leaving because of
alleged sexual harassment. At these jobs she earned on average
R1 200,00 per month.
Thereafter she worked at a bottle
store in Fort-Beaufort for a month but left due to conflict with her
manager. From October
2005 to February 2006 she was employed in
an administrative capacity at D & A Build-It in Fort-Beaufort.
She left when
the company closed down. She then went for an
interview at a doctor’s office but left before being
interviewed as she
felt uncomfortable.
[19]
Thereafter the plaintiff remained unemployed for nearly 4 years
until 2009 when she was able
to secure a job at Kings
Kidz as a child minder caring for toddlers. However, after
approximately a year and a half she left
following a disagreement
with her employer. She was unemployed for approximately 6
months until January 2011 when her cousin
employed her as a
child minder at Kidio Preparatory in Fort-Beaufort. Her
contract ended at the end of 2013.
[20]
The plaintiff informed Dr Van Daalen that she cannot handle working
with children anymore as she has become tired
of the noise and
business. She has no alternative employment in mind.
Given her problems and history she is concerned
that she will not be
able to find another job for a while. She said to Dr Van Daalen
“
Fort-Beaufort
is a small town and people ask about your background.
Unfortunately I don’t have a good record I used
to drink a lot
and
have
bad
friends.”
Her
career vision prior to the incident was to become a police woman.
The
rape trial
[21]
In June and July of 2004 the trial of the plaintiff’s rapist
triggered all the memories of the rape.
The plaintiff spent 7
days in George waiting for her turn to give evidence. According
to Professor Edwards she recalls being
so upset that she did not want
to testify. She recalls also that it was immensely distressing
to have to stand in Court near
her rapist and she tried to avoid
looking at him. The plaintiff testified about being
retraumatised each time she has had
to attend Court and relive the
experience.
The
plaintiff's relationships
[22]
The plaintiff has had 2 serious heterosexual relationships.
Firstly with Colin, a man 12 years her senior
and secondly with her
husband, Christopher, whom she married in May 2011. Clinical
psychologist Meyer’s report states
that the plaintiff has
a chronic history of an-orgasmia and dyspareunia (pain due to sexual
intercourse), although, more recently
she has frequently been
orgasmic and her dyspareunia has become intermittent.
Meyer records that the plaintiff compels
herself to participate in
sexual intercourse because this is demanded from her although she
confided that she would prefer to be
sexually abstinent for the
remainder of her life. Nevertheless, she acknowledged that this
would result in such significant
marital problems, that it is best to
consent when absolutely necessary, although she does not initiate any
sexual activity.
[23]
When the plaintiff was approximately 18 years of age she was
impregnated by her former partner, Colin and pressurised
into having
an abortion. Subsequently, reports Meyer, she has experienced 2
spontaneous abortions and the death of a child
during birth in 2010,
which she believes is punishment for having had an abortion. Towards
the end of her relationship with Colin,
whom she looked upon as a
father figure, the plaintiff discovered he was still married with
children.
[24]
The plaintiff’s husband Christopher works as a mechanic.
Chrisopher, in an interview with Meyer described
his wife as being
frequently moody and enraged, followed by tearfulness and misery.
She experiences problems with socialising.
In the earlier
period of her relationship with Christopher they drank excessively.
The plaintiff reported to Meyer that she
recently informed
Christopher she had reached the point where she does not enjoy sexual
intercourse and no longer wants to engage
in a sexual relationship.
[25]
The plaintiff gave birth to her son Eben on 15 September 2011
whom she regards as a blessing. Nevertheless,
records Meyer,
owing to the plaintiff’s pervasive and consistent feeling of
fatigue and chronic depression, caring for her
son is a challenge.
Fortunately, because she and her husband live with her mother and 2
brothers, she has assistance.
The
plaintiff's siblings
[26]
Of the plaintiff's siblings only 1 has a matric education. This
is her sister Catherine, born in 1990 who
is employed as a receiving
manager at the University of Fort Hare in Alice. She is married
without any dependants.
The plaintiff’s other sister
Pamela, born in 1985, has a Gr. 9 education. She left school
because she became pregnant
and is currently a housewife. The
plaintiff’s brother Wayne, born in 1995, dropped out of school
in 2012, reportedly
due to persistent bullying and has not returned.
The plaintiff’s half-brother Gerhard born in July 2000 is
currently
at school in Grade 7.
[27]
In 2006 Professor Edwards performed a psychometric assessment of the
plaintiff. She obtained a full scale
IQ of 117, a verbal IQ of
112 and a performance IQ of 119. He considered from these
scores that her intelligence was average
to above average.
Loebenstein stated that this together with evidence from the social
worker suggested that the plaintiff would
have had the intellectual
capabilities to pass matric.
[28]
Professor Edwards in his report notes that the plaintiff has been
subjected to other stresses in her life, bar
the rape : her parent’s
quarrels, her father’s and sister’s death, her mother’s
limited capacity to offer
her psychological support and her mother’s
involvement with an alcohol- dependent second husband. However,
it seems
improbable, opines Professor Edwards, that the plaintiff
would have suffered such prolonged and intense distress or been so
dysfunctional
occupationally and socially, had she not been raped.
Professor Edwards states further that although the plaintiff's family
had been poor and unsettled, and she had had to deal with
bullying and teasing, there is evidence that she was resilient
and
remained engaged with her school work prior to the incident.
The
Plaintiff's testimony
[29]
In her testimony the plaintiff by and large corroborated the
accounts of her family circumstances, life and
difficulties as
contained in the various expert reports. She stated that she
had wanted to be a police woman but because
of what has happened to
her she has changed her mind as she no longer trusts the police.
She spoke of how difficult it has
been for her each time she has had
to testify in Court and relive the rape. She stated she would like to
complete her matric and
thereafter do administrative work.
The
Plaintiff’s claim for future medical expenses
Inpatient
Psychotherapy
[30]
In a joint minute clinical psychologists Mr Meyer for the plaintiff
and Mr Loebenstein for the first defendant,
agreed that the plaintiff
was psychologically vulnerable prior to the rape. Meyer
elaborated that this was owing,
inter alia
to her age,
familial and socio-economic factors. They also agreed that
subsequent to the rape the plaintiff suffered from
chronic
post-traumatic stress disorder and a co-morbid major depressive
disorder which to date have not been treated. Meyer
elaborates
further that the plaintiff has sustained “deficits in the
domains of cognitive functioning and academic achievement,
underpinned by compromised socio-motional and personality
development, which have affected her vocational, marital, sexual,
parental
and physical functioning”.
[31]
Mr Loebenstein expressed the opinion that the plaintiff would respond
to inpatient treatment at a facility that
offers multi-disciplinary
interventions and that a combination of appropriate medication and
cognitive behaviour therapy, followed
up by out-patient sessions of
cognitive behaviour therapy would be effective in treating her
post-traumatic stress disorder and
major depressive disorder.
[32]
Meyer expressed the opinion that chronic, multi-model therapy,
primarily in the field of psychiatry and psychology
is required.
This will probably ameliorate the plaintiff’s suffering, but
will probably not result in a full or long
term remission.
Although Meyer expressed reservations regarding the suitability of
cognitive behavioural therapy for the
plaintiff considering her
education, he conceded that cognitive behavioural therapy may
be a good start.
[33]
There was some disagreement between the experts about the extent of
medical treatment that the plaintiff would
need to undergo.
While both experts agreed that inpatient treatment at a psychiatric
unit to initiate targeted psychotherapy
was necessary, Mr Loebenstein
recommended that this should be for a 3 week period as opposed to the
6 week inpatient treatment
suggested by Mr Meyer. During
argument the parties agreed to a formulation of inpatient treatment
of 4½ weeks, being
the average time as suggested by Meyer and
Loebenstein. This in my view would appear to be a pragmatic and
sensible resolution
of their differences. The only costing of
medical expenses was that of the plaintiff’s actuary Simon
Kroon, which,
as aforementioned was uncontested. The
value of initial inpatient treatment of 6 weeks as of 3 March 2014
determined
by Mr Kroon is R123 700.00 An adjustment
thereto would have to be made to determine the cost of 4½
weeks treatment
as at the date the plaintiff commences inpatient
treatment.
Outpatient
psychotherapy sessions
[34]
The experts were in agreement that following inpatient treatment the
plaintiff would need a number of sessions
of psycho-therapy.
Meyer was of the view that she should be awarded 100 sessions of
psycho-therapy to be used over the remainder
of her life for
individual, marital or family therapy. In contrast Loebenstein,
calling into aid a report published by the
British Psychological
Society on the management of post-traumatic stress disorder, said
that the number of sessions reported as
being efficacious, was 12
sessions. In this regard he referred to the treatment of
post-traumatic stress disorder in soldiers
returning from combat.
The origin of post-traumatic stress disorder, he said, is irrelevant
when treating the symptoms or
its condition. The treatment
favoured by him, being cognitive behavioural therapy, required
inter
alia
the patient to re-live the trauma. Mr Loebenstein
however conceded that there was no hard and fast rule and each case
had
to be determined on its facts. With regard to the
plaintiff, due to her pre-existing dysfunctional status, the
prognosis
for her post-traumatic stress disorder and major depressive
disorder would be enhanced by additional sessions. He suggested that
a further 16 sessions be afforded to her.
[35]
During argument Mr Olivier for the plaintiff indicated that the
plaintiff was prepared to reduce the 100 sessions
of psycho-therapy
initially proposed by Mr Meyer to the 28 sessions envisaged by Mr
Loebenstein, and a further 36 sessions. This,
he said, was arrived at
by applying a 50 % contingency to the difference between 100
and 28 sessions. The plaintiff
accordingly ultimately
called for a total of 64 sessions of psycho-therapy as opposed to 28
sessions agreed to by the first defendant.
[36]
It is undesirable to adopt a thumb suck or arbitrary gestimate of the
plaintiff's psychotherapy treatment. To avoid
this it is my view that
an initial award of 28 sessions of psychotherapy, which according to
the experts is so clearly needed,
should be awarded. This should be
costed in accordance with the actuarial valuation ascribed by
Mr Kroon, adjusted to the
date that treatment commences, if
necessary. On completion of the 28 sessions of
psychotherapy, the number of further
sessions of treatment required,
if any, should I believe be determined on psychiatric advice.
[37]
I called upon the parties to agree to a formulation for the
determination of the number of further sessions, if
any. They were
unable to do so. In the event I propose the following as a fair
formulation : On completion of 28 sessions of
psychotherapy,
the plaintiff's treating psychiatrist shall furnish a report on the
number of necessary further sessions the plaintiff
requires. In the
event of this being disputed by the first defendant, the number
of further sessions shall be decided by
an independent psychiatrist
to be appointed by the parties. The cost thereof shall be
computed by an actuary at the first
defendant’s cost.
On-going
medication
[38]
Mr Meyer testified that the plaintiff would need on-going medication
until her death. Mr Loebenstein agreed
that the need for
on-going medication until death was likely and did not contest that
provision therefor should be allowed.
Meyer made provision for
this item at a cost of R500 to R1000 per month, calculated in
the actuarial report of Kroon to be
R252 300 as of 3 March
2014. Mr Meyer however concedes in his report that it is not
his area of expertise to assess
the nature, extent or cost of
psycho-pharmacotherapy and states that details of this should be
obtained from a psychiatrist.
In testimony Meyer however
qualified that he was competent to express a view on the cost of
medication given his long experience
of working with psychiatrists.
[39]
I am satisfied that provision should be made for on-going
medication until the plaintiff’s death given
the opinion of
both experts. The reasonable costs of such medication must however be
determined upon psychiatric and pharmacological
advice. I requested
the parties to furnish me with an agreed formulation for the
determining of such costs. They were unable to
do so. In the event I
propose the following to be a fair formulation : The
plaintiff's treating psychiatrist shall furnish
the parties with
a report which specifies the necessary on-going medication that the
plaintiff shall require for the rest
of her life. In the event of a
dispute, an independent psychiatrist appointed by the parties shall
determine the necessary on-going
medication for the rest of the
plaintiff's life. The cost thereof shall be computed by an actuary.
The
plaintiff’s claim for loss of earnings
[40]
The plaintiff ultimately claimed a total sum of R3 520 000.00 for
loss of earnings as calculated in the actuarial
report by Mr Kroon,
(annexure “HF2” to the plaintiff’s principal
submissions), the computation of which was also
not contested.
This calculation reflected the position that the plaintiff would have
been in had she followed the career
path of her most successful
sibling, Catherine. She is the only one of the siblings born of the
plaintiff’s parents’
marriage to have matriculated, and
is currently employed in an administrative position at the University
of Fort-Hare.
In support of this scenario Dr Van Daalen
testified it was likely that the plaintiff would have matriculated,
given her IQ
level of 117 which placed her in the top 12% of the
population, as well as the favourable schooling regime in Fort
Beaufort.
[41]
Industrial psychologist Dr Swart for the first defendant noted that
there were significantly adverse circumstances
that might have
prevented the plaintiff from finishing Grade 12, the equivalent of
matriculating. He cited the pre-incident
trauma of the death of
her father and sister, the difficulties in the family and the
plaintiff's alleged rebellious and deviant
behaviour before the
rape. The levels of educational and occupational achievements
of the plaintiff’s siblings and
extended family, he pointed
out, did not suggest completion of Grade 12 as fact. The
sibling that completed Grade 12 appears
to have been the exception,
he said. In addition, economic circumstances in the country and
Fort-Beaufort in particular had
to be considered in proposing a
career path for the plaintiff.
[42]
Dr Swart however ultimately conceded that he was prepared to give
plaintiff the benefit of the doubt that she would
have been capable
of matriculating. In this eventuality, he too agreed that a reference
for her career path and remuneration
should be that of her
sister Catherine.
[43]
With regard to the plaintiff’s post-incident career scenario,
both Van Daalen and Swart in their joint minute
expressed concern
that given the plaintiff’s advanced age, and after being out of
school for about 17 years, it would be
very speculative to assume
that with financial means and successful treatment, she would be able
to complete her schooling.
They agreed also that if she does
not improve her level of education, the plaintiff’s future
career progress will be “a
repetition of her erratic historical
career of low-level employment interspersed with periods of
unemployment”. Generally,
they agreed she would probably
be employed for about 40% to 60% of the time and her salary would be
likely to remain between R2 500
and R4 500 per month with
very little chance of upward mobility.
[44]
The pre-incident earnings in Kroon's report, based on the
aforementioned career path of the plaintiff's sister
Catherine,
proposes the plaintiff entering the job market at the age of 19 when
she would have left school, had the rape not occurred.
It
places her at an entry salary level of R40 778.00 per annum, which
indexed at 2014 levels, it calculates, to R72 000.00.
It
envisages that she would stay at this level for a period of 5 years.
Thereafter she would enter the job market in 2009
in the formal
sector at Peromnes level 15 with an annual salary in 2009 terms
of R77 170.00. Mr Kroon has reduced
this amount by
22.5%. This is to allow for a 50% probability of employment in
the non-corporate sector at salaries
40 to 50% lower than in
the corporate sector.
[45]
For a further 5 years Kroon's report places the plaintiff at
Peromnes 15, thereafter for 5 years at Peromnes
13 and finally at
Perommes 12 for the rest of her career up to the age of 65. The total
figure of pre-incident earnings arrived
at is R4 147 100. 00
[46]
The post-incident earnings have been calculated as per the joint
minute of the industrial psychologists with the
plaintiff working in
the future intermittently with a salary of R3 500 per month. The
total value thereof as of 3 March
2014 was calculated at
R627 100.
[47]
On the basis of these calculations the plaintiff’s total loss
of earnings, being the difference between the
envisaged pre-incident
and post-incident earnings, was fixed at R3 520 000.00.
[48]
Arguing against such an award, Mr Van der Schyff for the first
defendant contended that Swart's perceived
concession
that the plaintiff would have achieved matric, was irrelevant as the
Court had a duty to properly consider the experts'
reasoning.
He submitted that Scenario 1 in Dr Swart's report which did not have
the plaintiff matriculating but completing
Grade 10, should be
accepted. Mr Van der Schyff's heads of argument had not been typed
when he argued in Court. In written submissions
handed in a day
after argument he was able to elaborate. Relying on Scenario 1,
he referred to Swart's opinion that given
plaintiff’s childhood
proclivities, she would not have progressed beyond Grade 8 in her
pre-morbid state and that she in
all likelihood would have commenced
employment in about 2004 where after she would have gradually
progressed to R47 300 per
month in about 2010. But Swart's
Scenario 1 which appears at page 179 of the record is based on the
plaintiff completing
Gr. 10 as opposed to Gr. 8 ,as stated in the
submissions on behalf of the first defendant.
[49]
Mr Van der Schyff submitted moreover that Swart’s opinion that
the plaintiff would have progressed no further
than Grade 8 derives
from the interview with the plaintiff’s mother who sketched a
bleak picture of her scholastic performance
and general behaviour at
the time. But in her interview, as recorded in the report of Swart,
the plaintiff’s mother did not
say anything about the
plaintiff’s scholastic performance.
[50]
Mr Van der Schyff initially annexed an illegible actuarial report by
Munro Forensic Actuaries to his written
submissions handed in
after oral argument. The replacement actuarial report though legible,
is regrettably in compressed and
very small font which
does not make for easy reading. Plaintiff's past loss of earnings
on Swart's scenario, submitted
Mr Van der Schyff, actuarially
amounts to R271 890.00, which is the past loss of earnings less
contingencies of 10 % as per
the actuarial calculation of Munro.
The plaintiff’s future loss of earnings, was estimated at
R394 000. This was
based on her commencing employment in 2016 at
the rate of R1 750 per month, being 50% of the estimated amount
of R3 500
derived from the joint minute of Van Daalen and Swart.
As the first defendant did not elect to call actuary Munro to
testify, his/her
computations were not able to be tested.
[51]
In written submissions in response to Munro’s computation Mr
Olivier pointed out
inter alia
that the computation by
Munro does not comply with Scenario 1 as sketched by Dr Swart in the
following manner :
(i)
the age of retirement given in Swart's report for uninjured earnings
is 60 to 65 years whereas
Munro worked on a retirement age of 60;
(ii)
retirement age in the injured scenario given by Swart is 65 whilst
Munro worked on a retirement
age of 60;
(iii)
Mr Van der Schyff advocated applying a 25% general contingency
whilst Munro used a 10 % deduction
on past earnings and 20 % on
future earnings.
(v)
No motivation for the contingency deductions is made by Mr van der
Schyff.
I
am of the view that the permutations and discrepancies alluded to
above as well as the fact that it was untested in evidence,
render
reliance on the Swart/ Munro formulation argued for by Mr Van der
Schyff, as problematic.
[52]
Dr Swart’s Scenario 1 was in any event brought into question by
Swart himself when he made the concession
in his testimony that he
was prepared to give the plaintiff the benefit of the doubt that she
would have passed Gr. 12. That,
together with the reports of
Edwards, Meyer and Van Daalen that the plaintiff had the capacity to
matriculate, her premorbid scholastic
performance, and the
uncontested evidence of her favourable IQ, leads me to favour as a
useful yardstick for her loss of
earnings, the trajectory of
her sister Catherine with appropriate contingency deductions. This,
the plaintiff's best case
scenario would have her passing Grade 12
and thereafter following the career path of her sister Catherine, the
path agreed
to by both industrial psychologists in the event of
her matriculating, and as portrayed in the actuarial report of
Mr Kroon.
To this I would apply a necessary contingency deduction
which I go on to explain.
[53]
I have accepted the scenario of the plaintiff completing Gr. 12 and
following the career path of her sister Catherine
as a yardstick for
the determination of her loss of earnings. However, I am of the view
that regard being had to the educational
and occupational
achievements of all plaintiff’s siblings who were
subjected to the same turbulent familial and
socio-economic
circumstances as her, bar the rape, there would have been a
50% chance that the plaintiff would have
followed the
trajectory of her most successful sibling, Catherine. Equally it can
be said there would have been a 50% chance that
the plaintiff would
have followed the trajectory of her less successful siblings. I am in
agreement with Dr Swart that the sister
who achieved Grade 12 was the
exception. It would therefore in my view be appropriate in all
of the circumstances to allow
for a 50% contingency deduction
resulting in an award to the plaintiff of /50% of
the amount calculated
in respect of loss of earnings by Mr Kroon,
being R1 760 000.00.
The
plaintiff’s claim for general damages
[54]
The bodily injuries sustained by plaintiff are not denied by the
defendant. It is clear that the trauma suffered
by the
plaintiff on a physical level was severe. Professor
Edwards describes the injuries and assault as follows:
“
He
started to assault her repeatedly. He pulled her hair and hit
her head against the car several times from different angles.
He hit her in the face on both cheeks. She recalls seeing stars
when he did this. He threw her to the ground and kicked
her in
the stomach. He held her throat and throttled her several
times. However, she does not recall losing consciousness
at
all. Then he raped her. She estimated the assault and
rape lasted about a half an hour altogether. Her head and
face were
swollen and there was a tear at the right side of her lip, although
it did not need to be stitched. There were
bruises on her arms
and body where he had hit and kicked her and tearing and bleeding in
the genital area from the
rape.”
The
physical trauma suffered by the plaintiff merits an equitable
award for pain and suffering in terms of the
lex aquilia
and
also for contumelia under the
actio iniuriarum
as a result of
the infringement of her personality rights.
[55]
Mr Olivier submitted that the defendant was in a position to
determine the plaintiff’s loss for pain and
suffering upon
receipt of the summons in 2006 when the reports of Professor Edwards
and Mr Shaw were annexed to the particulars
of claim. He called
for interest from October 2006 until March 2014 to
be factored into the award for pain
and suffering . This, he
set at R300 000, which with interest at
15.5%, he calculated to be
R648 750. The sum of
R700 000, he argued would be reasonable as
solatium
for the lasting damage to the plaintiff.
[56]
There would appear to be a dearth of cases in which damages have been
claimed flowing from rape, something of an
anomaly as it were, given
the disquietingly high incidence of rape in our society. Both counsel
referred me to the unreported matter
of
Babalwa
Nogqala v Minister of Safety and Security
(Case No. 676/2011 – Eastern Cape Division, Grahamstown,
delivered on 18 June 2012) in which a 22 year old woman
who was raped by a policeman in his office, was awarded R225 000
in respect of damages for
contumelia
(approximately
R252,722.00 in today’s terms
[8]
)
and R150 000 for general damages (approximatelyR168 481.00 in
today's terms)
[9]
The
total award of R375 000.00 for general
damages in today's terms amounts to R421 203.00
[10]
The plaintiff in Noqgala was not assaulted. She too suffered
post-traumatic stress disorder and depression as a consequence of
the
rape. Mr Olivier referred me to
Grobeler
v Naspers
2004 (4) SA 220
(C) , a sexual harassment as opposed to rape case, in
which the adult plaintiff who was not physically harmed, but suffered
from
post-traumatic stress disorder, was awarded general damages of
R150 000 in 2004, being approximately R269 793.00 in today's
terms.
[57]
There is also the unreported judgment of
Philander v Minister of
Safety and Security
(Case No 473/2011, 6 June 2013, North West
High Court, Mafikeng) where a woman of 36 who was assaulted by
members of the police
force and twice raped by a policeman was
awarded the comparatively lesser amount of R180 000.00 for general
damages. No separate
amount was awarded for conumelia. Her
injuries were nowhere as severe as that of the plaintiff before me.
She too suffered from
post-traumatic stress disorder. The judgment
does not refer to the relatively higher award in
Nogqala
a year earlier.
[58]
These cases provide some guidance. It would, however, I believe, be
equitable for a comparatively higher award to be made to
the
plaintiff in view of the excessive violence, brutality and assaults
she was subjected to at the youthful age of 13.
The
plaintiff's pain and suffering and the extent to which she has been
traumatised and re-traumatised over the many years since
her rape,
were evident during her testimony. The rape occurred when she
was no more than a child, young and vulnerable and
has impacted
negatively and severely on her sense of self, dignity, normal sexual
development and enjoyment of life. The scars
thereof will live with
her for a long time to come if not forever. The fact that the rape
was perpetrated by an adult in a position
of trust, moreover a
policeman who had duty to protect citizens and uphold their safety
and dignity, is an aggravating factor.
She was subjected to the most
heinous invasion of her chastity and privacy and an aggression on her
person and reputation. Her
constitutionally protected rights to
dignity, privacy, freedom and security and her right as a child to be
protected from abuse
and degradation were trampled upon in an utterly
inhumane manner, and the effects thereof will be with her always as
aforementioned.
[59]
Regard being had to the above, I come to the view that an amount of
R300 000 in respect of contumelia and R200
000 for pain and suffering
would be reasonable and appropriate. This would constitute just and
equitable compensation regard being
had to all of the circumstances,
and the question of factoring in an amount for interest does not
therefore arise. I am mindful
however that no amount in pecuniary
terms can eradicate the events of that fateful night and the
devastation it has wrought on
the plaintiff.
[60]
The sum of R250 000 which the plaintiff has already
received from the first defendant by agreement in terms
of a
court order of 5 September 2013, is to be deducted from the award of
general damages of R500 000. In the circumstances
the plaintiff
is awarded a sum of R 250 000 in respect of general damages.
Costs
[61]
Mr Olivier argued for attorney and client costs, submitting that the
matter ought to have been settled after the
first defendant’s
liability was established by the Constitutional Court. The
first defendant refused to do so and continued
with its intransigent
approach thereby causing plaintiff extra and unnecessary stress.
Mr Van der Schyff in turn
called for the costs of one counsel
only to be awarded to the plaintiff.
[62]
Whilst it would of course have been preferable had a
settlement been reached, the very wide gap between
the parties
prevented this. A punitive cost order against the first defendant is
not in the circumstances warranted.
I am satisfied
that the complexities of this matter, the nature of the issues, the
inputs by the various experts consulted
by the plaintiff and the
preparation this entailed, warrants an award of costs for two
counsel.
[63]
I accordingly grant the following order:
1.
The first defendant shall pay the plaintiff the sum of R250 000.00
in respect of general
damages.
2.
The first defendant shall pay the plaintiff's future medical expenses
in respect of the items
listed below:
2.1
4½ weeks inpatient treatment at a psychiatric unit. The costs
thereof shall be computed
with reference to the
uncontested actuarial report of Mr S Kroon dated 3 March 2014, and
shall be adjusted, if necessary to the
cost as at the date treatment
commences.
2.2
An initial 28 sessions of psycho-therapy to be costed in accordance
with the actuarial report of Mr
S Kroon dated 3 March 2014, as
at the date of the commencement of such therapy.
2.2.1
Upon completion of the initial 28 sessions, the medical
practitioner who administered the psychotherapy
sessions shall
furnish the parties with a report stating the number of necessary
further psychotherapy sessions, if any, that the
plaintiff requires.
The first defendant shall pay the costs of such report. In the event
of a dispute arising between the parties
as to the number of further
necessary sessions required, an independent psychiatrist, appointed
by the parties shall determine
and furnish a report at the first
defendant’s expense on the number of necessary further sessions
required. The
cost of such further sessions shall be
computed by actuarial calculation at the first defendant’s
expense;
2.3
The
first defendant shall pay the reasonable costs of necessary on-going
medication for the rest of the plaintiff’s life,
such to be
determined as set out in paragraph 2.3.1 below;
2.3.1
The plaintiff's treating psychiatrist shall furnish the parties with
a report which specifies the necessary on-going medication
that the
plaintiff shall require for the rest of her life. The first defendant
shall bear the costs of such report. In the event
of a dispute, an
independent psychiatrist appointed by the parties shall determine and
furnish a report at the first defendant’s
expense on the
necessary on-going medication for the rest of the plaintiff's life.
The cost thereof shall be computed by an actuary
at the first
defendant’s expense.
2.4
Upon receipt of the actuarial calculations in
respect of the sums in paragraphs 2.2.1 and 2.3.1 by the parties,
and
should the parties fail to agree as to the actuarial calculations,
any party will be entitled within 5 working days of the
receipt of
such calculations, and on notice to the other party, to approach me
in chambers to present oral argument as to the further
conduct of the
matter.
3.
The first defendant shall pay to the plaintiff the sum of
R1 760 000.00 in respect
of loss of earning capacity.
It is recorded that this is the actuarial calculation of the loss of
earning capacity as per
the actuarial report of Mr S Kroon dated 3
March 2014 and shall be adjusted if necessary to the value of
R1 760 000.00
(one million seven hundred and sixty thousand
rand) as at date of payment.
4.
The first defendant shall pay plaintiff’s costs on the High
Court scale such costs
to include the costs of two counsel and the
qualifying expenses and attendance in Court, if any of the following
experts:
4.1
Professor D Edwards;
4.2
Mr Shaw;
4.3
Mr Meyer;
4.4
Dr HJ van Daalen; and
4.5
Mr Simon Kroon.
5.
Such costs shall moreover include the travelling costs and
accommodation of the following
experts:
5.1
Dr HJ van Daalen;
5.2
Mr I Meyer; and
5.3
Mr S Kroon.
6.
The first defendant shall moreover pay the costs of plaintiff’s
examination by Mr Loebenstein
and Dr Swart, including their
travelling costs and accommodation where necessary.
7.
The plaintiff is declared a necessary witness and the costs relating
to her travel and accommodation
shall be paid by the first defendant.
8.
All amounts in respect of damages awarded to the plaintiff shall be
paid into the Trust Account
of the plaintiff’s attorneys being
Wheeldon Rushmere & Cole the details of which are:
WHEELDON
RUSHMERE & COLE
TRUST
ACCOUNT
ABSA
Bank
Grahamstown
Account
Number: 4…………………..
Branch
Code: 4…………………..
9.
The first defendant shall pay interest on all sums awarded as
damages calculated at
the rate of 15,5% per annum from date of
judgment to date of payment.
10.
The first defendant shall pay interest on the plaintiff’s taxed
costs at the legal rate from a
date fourteen (14) days after taxation
to date of payment.
Y
S MEER
Judge
of the High Court
[1]
MA, PhD Psychology, Professor of Psychology
Rhodes University appointed in 1985, Founding Fellow of the Academy
of Cognitive Therapy
(USA). Professor Edwards has researched and
published extensively on post- traumatic stress disorder and
cognitive therapy. Professor
Edwards has passed away since preparing
his report.
[2]
Mr Meyer is a Clinical Psychologist with an MA in
Clinical Psychology (UPE). He testified to being in practice for 34
years and
is based in Port Elizabeth.
[3]
BA (HONS) IR MA (cum laude) Psychology Rhodes.
[4]
Bcom Hons (Stell) Mcom (UPE) B Com (Pret).
Formerly professor at Fort Hare and Dean of Faculty of Economic
Sciences. Dr Van Daalen
testified to practicing as an Industrial
Psychologist for 34 years.
[5]
BSc (HONS) PGCE, Fellow of the Actuarial Society
of South Africa. Has had nineteen years’ experience as
an actuary
working with Old Mutual. Currently an actuary in
Grahamstown.
[6]
BSC (UCT) BSC Hons (UNISA)MA Clinical Psychology
(UCT); 1972 to 1980 Psychologist in Medical Faculty UCT; 1980 to
present in private
practice. Mr Loebenstein has testified in many
cases since 1982.
[7]
MCom (UNISA) PhD (Potchefstroom). In private
practice since 1988. Dr Swart has been engaged in medico legal work
since 1995 and
has testified on several occasions.
[8]
As adjusted in the Quantum Year Book, Robert
J Koch; Van Zyl, Rudd and Associates 2014, page 2.
[9]
Ibid
[10]
Ibid